[Federal Register Volume 88, Number 163 (Thursday, August 24, 2023)]
[Rules and Regulations]
[Pages 57879-57881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18100]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AB23


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is issuing a final rule revising its Federal sector 
complaint processing regulations to allow for the digital transmission 
of equal employment opportunity hearing and appellate documents and to 
address various uses of the Commission's Electronic Public Portal.

DATES: Effective August 24, 2023.

FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal 
Counsel, at (202) 921-2665 or <a href="/cdn-cgi/l/email-protection#ef848e9b87838a8a81c1809d8e82af8a8a808cc1888099"><span class="__cf_email__" data-cfemail="1972786d71757c7c7737766b7874597c7c767a377e766f">[email protected]</span></a>, or Gary J. 
Hozempa, Senior Staff Attorney, at (202) 921-2672 or 
<a href="/cdn-cgi/l/email-protection#d2b5b3a0abfcbabda8b7bfa2b392b7b7bdb1fcb5bda4"><span class="__cf_email__" data-cfemail="0b6c6a7972256364716e667b6a4b6e6e6468256c647d">[email protected]</span></a>, Office of Legal Counsel, U.S. Equal Employment 
Opportunity Commission. Requests for this document in an alternative 
format should be made to the EEOC's Office of Communications and 
Legislative Affairs at (202) 921-3191 (voice), 1-800-669-6820 (TTY), or 
1-844-234-5122 (ASL video phone).

SUPPLEMENTARY INFORMATION:

Introduction

    On September 27, 2022, the EEOC published in the Federal Register a 
Notice of Proposed Rulemaking (``NPRM'') announcing its intention to 
amend 29 CFR part 1614 by authorizing the EEOC, the Office of Federal 
Operations (``OFO''), and the EEOC's Administrative Judges (``AJs'') to 
issue and receive documents electronically instead of, or in addition 
to, using first class U.S. mail (``first class mail''). Currently, 29 
CFR 1614.109(i) provides that an AJ ``shall send copies of the hearing 
. . . decision to the parties.'' Section 1614.405(a) requires that a 
Commission appellate decision be ``transmitted to the complainant and 
the agency by first class mail.'' The NPRM proposed authorizing the 
Commission to transmit its hearing and appellate decisions, orders, and 
related documents to registered complainants through the EEOC 
Electronic Public Portal (``Public Portal'' or ``Portal''). It also was 
proposed that complainants could file hearing requests, appeals, and 
related documents through the Portal. The NPRM further proposed 
requiring agencies to notify complainants that they can use the Public 
Portal to file hearing requests and appeals. Finally, the NPRM asked 
commenters to address when an EEOC decision transmitted through the 
Portal should be considered to be received.
    The final rule formalizes the current use of electronic 
communications between the EEOC and its stakeholders by explicitly 
providing for the digital transmission of complaint files, hearing 
requests and associated documents, appeals and associated documents, 
and Commission decisions. The final rule confirms that the digital 
receipt of hearing requests, appeals, Commission hearing and appellate 
decisions, and related documents, is equivalent to receipt by first 
class mail. Nevertheless, the final rule makes clear that a 
complainant's use of the Portal is voluntary.
    Thus, for complainants who choose not to establish a Portal 
account, or who establish an account but do not agree to receive EEOC 
communications only through the Portal, OFO will use first class mail 
to communicate with, and send documents to, complainants, even while 
transmitting the same documents to agencies via FedSEP (the EEOC's 
separate electronic Portal for agency-only use); AJs also will use 
email to transmit documents. These same complainants will be able to 
file hearing requests, appeals, and related documents through the 
current methods available (first class and registered mail, facsimile, 
personal delivery, and email).

Comments Generally

    The EEOC received five comments about the NPRM, four from 
individuals and one from an attorney organization (``organization''). 
The commentors generally favor authorizing the EEOC and its AJs to 
transmit decisions and orders through the Portal. They also approve of 
allowing complainants to use the Portal to transmit hearing and 
appellate requests and documents. The organization opposes certain 
proposals while it and some of the individuals recommend specific 
modifications. Most provided suggestions regarding determining a 
receipt date for Portal-transmitted decisions.

Specific Comments and EEOC's Response

Complainant Opt-In To Communicate via the Portal

    The NPRM provided that, where a complainant registers with the 
Portal, the EEOC will communicate with the complainant only through the 
Portal unless and until the complainant informs the EEOC that they want 
to receive EEOC documents by first class mail. The organization argues 
for a final rule specifying that a complainant will receive documents 
electronically only after the complainant affirmatively consents, or 
opts-in, to receive documents through the Portal. It further proposes 
that, even when providing consent, the complainant should retain the 
option to send and receive documents by other methods, such as first 
class mail, in addition to receiving these same documents through the 
Portal. To this end, the organization proposes that a final rule should 
require agencies and the EEOC to provide complainants with relevant 
contact information for all filing methods

[[Page 57880]]

during all stages of the complaint process.
    The EEOC agrees that complainants who establish Portal accounts 
should be given an opportunity to affirmatively declare whether they 
agree to receive documents only through the Portal. A functionality 
will be added to the Portal for complainants to indicate this 
preference. Complainants who do not give their consent will receive OFO 
communications through first class mail and AJ communications through 
first class mail or email (if they provide an email address). However, 
the EEOC does not think it efficient to continue to use first class 
mail or other methods of communicating after a complainant 
affirmatively agrees to communicate via the Portal. Receipt by OFO of 
documents in the same matter through multiple means will complicate OFO 
recordkeeping, increase expenses, and cause delays.
    Regarding addressing the various ways a complainant may communicate 
with an agency, the EEOC declines to implement the organization's 
recommendations as they exceed the scope of this rule. The EEOC did not 
intend to address in this rulemaking either an agency's communication 
methods with a complainant or a complainant's communication methods 
with an agency. Absent an opportunity for public comment on these 
matters, it is not appropriate to address them in this final rule.

Receipt Date of Decisions Issued via the Portal

    As noted earlier, the NPRM specifically asked commenters to suggest 
when a decision or other document sent through the Portal should be 
deemed to be received by the complainant. Three individuals suggest 
that the receipt date should be the date the decision is first accessed 
by the complainant, regardless of when it is uploaded to the Portal. 
Two of these individuals stated that if the EEOC uses a standard such 
as, ``a decision is deemed to be received within X days of when it is 
uploaded to the Portal,'' the rule also should state that this 
presumption does not apply if the EEOC learns that the decision ``did 
not reach the person to be served.''
    The organization suggests creating two separate rules regarding 
receipt dates, depending on whether only the Portal is used, or email 
is used as well. If only email is used, the organization favors a 
rebuttable receipt date of seven days from the date of the email. If 
only the Portal is used, receipt should be deemed to occur when the 
complainant downloads the document. If both means of transmittal are 
used, the receipt date should be the date the decision is accessed via 
the Portal or email, or seven days after the email is sent, whichever 
occurs first.
    The EEOC appreciates receiving these suggestions about a receipt 
date and concludes that it will address this topic based on these 
submissions. The final rule borrows from some of the comments and 29 
CFR 1614.604(b), which deems receipt of regular mail to occur within 
five days of when a document is mailed. Thus, for Portal, email, and 
all other digital communications, the final rule provides that receipt 
is deemed to occur when a document is accessed on the Portal or 
received via electronic means, or within 5 days of when a document is 
uploaded to the Portal or transmitted electronically, whichever occurs 
first. Further, 29 CFR 1614.604(c), which allows equitable tolling of 
time frames, will apply to all transmissions, digital or otherwise. 
Finally, 29 CFR 1614.605(d) provides that receipt of a document is 
calculated from the complainant's receipt, unless the complainant is 
represented by an attorney, in which case the attorney's receipt 
controls. This provision requires no edits to apply to digital 
receipts.

Useability of the Portal

    The organization discusses difficulties it and its clients have had 
with certain features of the Portal. The organization offers a number 
of proposed technical enhancements to the Portal designed to make the 
Portal more user-friendly. These suggestions, while helpful, are not 
the proper subject matter for this final rule. Nevertheless, the EEOC 
will continue to work with its stakeholders to improve the 
functionality of the Public Portal (and FedSEP).

Regulatory Procedures

Executive Order 12866

    The Commission has complied with the principles in section 1(b) of 
Executive Order 12866, Regulatory Planning and Review. This NPRM is not 
a ``significant regulatory action'' under section 3(f) of the order and 
does not require an assessment of potential costs and benefits under 
section 6(a)(3) of the order.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to 
rulemakings in which an agency creates a new paperwork burden on 
regulated entities or modifies an existing burden. This final rule 
contains no new information collection requirements on the public, and 
therefore, it creates no new paperwork burdens or modifications to 
existing burdens subject to review by the Office of Management and 
Budget.

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this NPRM will 
not have a significant economic impact on a substantial number of small 
entities because it applies exclusively to employees, applicants for 
employment, and agencies of the Federal Government and does not impose 
a burden on any business entities. For this reason, a regulatory 
flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

    This NPRM will not result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Congressional Review Act

    This NPRM does not substantially affect the rights or obligations 
of non-agency parties and, accordingly, it is not a ``rule'' pursuant 
to the Congressional Review Act. Therefore, the reporting requirement 
of 5 U.S.C. 801 does not apply.

List of Subjects in 29 CFR Part 1614

    Administrative practice and procedure, Age discrimination, Color 
discrimination, Equal employment opportunity, Equal pay, Genetic 
information discrimination, Government employees, Individuals with 
disabilities, National origin discrimination, Pregnancy discrimination, 
Race discrimination, Religious discrimination, Sex discrimination.

    Accordingly, for the reasons set forth in the preamble, the Equal 
Employment Opportunity Commission amends chapter XIV of title 29 of the 
Code of Federal Regulations as follows:

PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY [AMENDED]

0
1. The authority citation for 29 CFR part 1614 continues to read as 
follows:

    Authority:  29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C. 
2000e-16 and 2000ff-6(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p. 
218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 
1969 Comp., p. 133; E.O.

[[Page 57881]]

12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3 CFR, 
1978 Comp., p. 321.


0
2. Amend Sec.  1614.108 by:
0
a. Adding a sentence at the end of paragraph (f); and
0
b. Revising the first sentence in paragraph (h).
    The additions read as follows:


Sec.  1614.108   Investigation of complaints.

* * * * *
    (f) * * * The notice that the complainant has the right to request 
a hearing and decision from an administrative judge shall inform the 
complainant that the hearing request may be filed using the EEOC Public 
Portal, available at https://publicportal.eeoc.gov.
* * * * *
    (h) Where the complainant has received the notice required in 
paragraph (f) of this section or at any time after 180 days have 
elapsed from the filing of the complaint, the complainant may request a 
hearing by submitting a written request for a hearing directly to the 
EEOC office indicated in the agency's acknowledgment letter, or by 
filing a request for a hearing through the EEOC Public Portal.
* * * * *


Sec.  1614.109   [Amended]

0
3. In Sec.  1614.109 amend paragraph (i) in the second sentence by 
removing the word ``send'' and adding in its place the word 
``transmit''.

0
4. Amend Sec.  1614.110 by adding paragraph (c) to read as follows:


Sec.  1614.110   Final action by agencies.

* * * * *
    (c) When an agency takes final action by issuing a final order or 
decision that requires the agency to include a notice that the 
complainant has the right to file an appeal with the EEOC, the notice 
shall inform the complainant that the appeal may be filed using the 
EEOC Public Portal, available at https://publicportal.eeoc.gov.

0
5. Amend Sec.  1614.204 by adding sentences at the end paragraphs 
(j)(1) and (l)(3) to read as follows:


Sec.  1614.204  Class complaints.

* * * * *
    (j)(1) * * * When an agency takes final action by issuing a final 
order or decision that requires the agency to include a notice that the 
class agent has the right to file an appeal with the EEOC, the notice 
shall inform the class agent that the appeal may be filed using the 
EEOC Public Portal, available at https://publicportal.eeoc.gov.
* * * * *
    (l)(3) * * * When an agency takes final action by issuing a final 
order or decision that requires the agency to include a notice that the 
class member has the right to file an appeal with the EEOC, the notice 
shall inform the class member that the appeal may be filed using the 
EEOC Public Portal, available at https://publicportal.eeoc.gov.


Sec.  1614.403  [Amended]

0
6. Amend Sec.  1614.403 paragraph (a) by adding the words ``by email, 
or through FedSEP or the EEOC's Public Portal, as applicable,'' after 
the word ``electronically''.

0
7. Amend Sec.  1614.405 by revising paragraph (a) to read as follows:


Sec.  1614.405  Decisions on appeals.

    (a) The Office of Federal Operations, on behalf of the Commission, 
shall issue a written decision setting forth its reasons for the 
decision. The Commission shall dismiss appeals in accordance with 
Sec. Sec.  1614.107, 1614.403(c) and 1614.409. The decision shall be 
based on the preponderance of the evidence. The decision on an appeal 
from an agency's final action shall be based on a de novo review, 
except that the review of the factual findings in a decision by an 
administrative judge issued pursuant to Sec.  1614.109(i) shall be 
based on a substantial evidence standard of review. If the decision 
contains a finding of discrimination, appropriate remedy(ies) shall be 
included and, where appropriate, the entitlement to interest, 
attorney's fees or costs shall be indicated. The decision shall reflect 
the date of its issuance, inform the complainant of his or her civil 
action rights, and be transmitted to the complainant and the agency. 
For complainants who are not registered with the EEOC Public Portal, 
the decision will be transmitted by first class mail. For complainants 
who are registered with the Public Portal, the decision will be 
transmitted via the Portal provided the complainant affirmatively 
consents to receive the decision through the Portal. For registered 
complainants who do not provide affirmative consent, and for 
complainants who affirmatively consent but subsequently notify the 
Commission that they withdraw their consent, the decision will be 
transmitted by first class mail. The Commission will transmit the 
decision to the agency via FedSEP.
* * * * *

0
8. Amend Sec.  1614.604 by:
0
a. Redesignating paragraphs (c) and (d) as paragraphs (f) and (g).
0
b. Adding new paragraphs (c), (d), and (e).
    The additions read as follows:


Sec.  1614.604   Filing and computation of time.

* * * * *
    (c) A hearing request, appeal, brief, or other document filed by a 
complainant using the EEOC Public Portal, or filed by an agency using 
FedSEP, shall be deemed filed on the date the document is uploaded to 
the Public Portal or FedSEP. The timeliness of documents submitted 
through the Public Portal and FedSEP will be determined based on the 
time zone from which the document was submitted.
    (d) An EEOC decision that is transmitted to a complainant through 
the Public Portal or by email shall be deemed to be received when the 
decision is accessed on the Portal or when received if transmitted via 
email, or within five days of when the decision is uploaded to the 
Portal or emailed, whichever occurs first.
    (e) For the purposes of Sec. Sec.  1614.108, 1614.109, 1614.204(i), 
and 1614.401 through 1614.405, the terms accept, file, filed, filing, 
issue, issuance, issuing, notify, notified, receive, receipt, send, 
serve, served, service, submit, submission, submitted, transmit, and 
transmitted, shall include digital transmissions made through FedSEP, 
the EEOC Public Portal, or by email.

    Dated: August 17, 2023.
Charlotte A. Burrows,
Chair.
[FR Doc. 2023-18100 Filed 8-23-23; 8:45 am]
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